Archive for the ‘Family’ Category

The divorce process in England and Wales is currently a fault based divorce system and this can exacerbate conflict between both the Petitioner and the Respondent during the divorce process. Two of the five facts to demonstrate that the marriage has irretrievably broken down are that the Respondent has behaved in such a way that the Petitioner cannot be expected to live with them and that the Respondent has committed adultery. These facts require an element of fault but also mean that people can issue divorce proceedings within two years of marriage breakdown. Therefore, it is encouraging divorcing couples to make false allegations on the divorce papers in the event that they do not wish to wait two years before issuing a two years separation with consent petition.

There are more than 110,000 divorces each year, many of which see the encouragement of conflict and blame. These divorces rely on the Matrimonial Causes Act 1973, which is law that is over 40 years old. However, it appears that the government has no plans to change the existing law on divorce. Earlier this year, the case of Owens v Owens highlighted why a no-fault divorce should perhaps be available. In that case the examples of behaviour as quoted by the wife on the ‘unreasonable behaviour’ petition were not deemed unreasonable enough. The Court of Appeal therefore dismissed the wife’s appeal against the dismissal of her petition for divorce based on her husband’s unreasonable behaviour leaving her ‘trapped in a loveless marriage.’ Resolution, whose core principle is to reduce conflict and resolve matters amicably, has been campaigning to allow people to divorce without blame, asking for legislative change and will continue to do so. Only by implementing a no-fault divorce system do Resolution believe that a situation like this will be prevented from happening again.

No-fault divorce is widely supported by the public and would remove the blame from divorce and thus would help couples work through the difficult process in a dignified way without the need for mud-slinging. Would this be a step towards a divorce process that is more civilised perhaps? It would no doubt provide the opportunity for more of an amicable separation which would certainly help to minimise any disruption of children involved. If couples just grow apart through no fault of either party, surely they should be able to choose to divorce in a dignified manner.

A No Fault Divorce Bill would seek to reform the law so that a divorce could be issued where both parties issue a joint petition in order to satisfy the court that the marriage has broken down irretrievably.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

In the majority of cases, child abduction is the removal of a child from one country to another or the wrongful retention of a child after a holiday or a contact period. An abduction usually occurs after the breakdown of a relationship and it is becoming ever more common due to the increase in people from different countries entering into relationships and having children together.

The Hague Convention decides which country has jurisdiction to decide where the child should live and therefore the country where the child was habitually resident and then for the return of the child to that respective country. It’s aim was that a child removed or retained across a border without the consent of all of those people who have the right to care for the child, should be returned to the country of his/her habitual residence in order for the courts to determine the child’s future.

Each country which is party to the convention has a ‘Central Authority’ which is bound to send and receive requests for the return of a child and to deal with any enforcement orders that are made. The Central Authority will also be able to liaise with law enforcement authorities as well as keeping you up to date with the progress of your application and trace the whereabouts of the child.

If you are the parent who has become aware that your child has already left the country, you should seek legal advice as soon as possible so that an emergency application to court can be made in order to put in place some emergency measures. A further court hearing would then be listed where the other parent would be ordered to attend and evidence to be submitted accordingly.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

[Wyatt v Vince [2015] UKSC14]

The Supreme Court allowed a wife’s claim to proceed 23 years after divorce. The parties married in 1981, separated in 1984 and they divorced in 1992 and therefore the relationship broke down 35 years ago. They had one son, Dane, and the husband treated the wife’s daughter from a previous relationship as a child of the family.

The court divorce file could not be located and therefore it is unknown as to whether any financial provision was made by way of an order at the time but there is no reason for the court to believe that the wife’s financial claims were dismissed. There is no time limit in family law for seeking orders for financial provision or property adjustment for the benefit of a spouse.

The wife made an application for financial provision in 2011 as well as interim payments to fund her legal costs. The husband then applied for her application to be struck out as he argued that it was too late for her to lodge her application but this application was dismissed and he then appealed successfully to the Court of Appeal and the wife’s application was struck out. The wife then appealed to the Supreme Court and the claim can now proceed.

The standard of living enjoyed by the parties prior to the breakdown was low and the husband did not begin to create his wealth until 13 years after the breakdown of the relationship and the wife has made no contributions to this wealth. The husband’s company, Ecotricity Group Ltd is valued at least £57 million and he is said to be worth £107 million. The husband currently lives with his second wife, their son and Dane. The wife strongly relies on the husband’s lack of financial support of their son Dane until 2001.

It remains to be seen as to whether the ruling will pave the way for anyone without a completed financial order to bring a claim regardless of how long ago they divorced although due to the extraordinary circumstances of the case, it is unlikely the floodgates will be opened.

This case demonstrates the importance of receiving legal advice upon a divorce and the importance of financial matters being finalised and a court order being obtained.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

At the present time, same sex couples can get married or enter into a civil partnership but opposite sex couples can only get married.

The Court of Appeal ruled earlier this year that this means that couples are being treated differently. Same sex couples have more options than opposite sex couples. But what will the government decide to do on the future of civil partnerships? Should civil partnerships be available to all or should they be removed completely?

A heterosexual couple lost their Court of Appeal battle in February 2017 to have a civil partnership instead of marriage. They wanted a more equal arrangement which is not burdened with the ‘sexist history’ of marriage. More people are viewing traditional marriage as very dated and sexist with too much religious weight and believe that a civil partnership would reflect themselves as equal parties in the way that they feel that marriage does not. Therefore they are not choosing marriage out of principle and they will wait to see as to whether the government will close the civil partnership loophole.

The Civil Partnership Act (2004 amendment bill) would extend the availability of civil partnerships to opposite sex couples, was due to have its second reading in parliament on 12 May 2017 but this has now been postponed. It remains to be seen as to what the government will decide to do.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

Less people than ever are getting married in the west and marriage in Britain is at its lowest level since 1895 and it appears that men, more so than women, are less than keen to enter into marriage when there is a risk that they will lose their space, their money and family if things go wrong.

Marriage is a legal contract and upon any divorce, the starting point for the courts in England and Wales is equality and men in particular are becoming more and more mindful of entering into a legal contract with someone when they believe that person could take half of their property, savings and pensions, if not more. One could argue that it is not that men are shying away from commitment, they are just being sensible.

There is also the possibility of having to pay ongoing spousal maintenance following the divorce for a long term or even for life. However, there has been recent case law to suggest that the aim of the court is for parties to become financially independent from each other as soon as it is reasonable and that it should only be considered to alleviate immediate financial hardship and a clean break should be considered as soon as it is practically possible.

If marriage is to be entered into, there are steps that can be taken to protect the assets of an individual as much as possible and one should consider entering into a pre-marital agreement so that both parties have a clear idea as to how they would divide up their assets upon separation and independent legal advice should be sought in this regard.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

More couples than ever are now choosing to live together and remain unmarried. Reasons vary although the high cost of a wedding and the desire to purchase a property before spending thousands of pounds on a wedding are among common reasons why people are choosing not to tie the knot.

Recent figures show that there are now 3.3 million cohabiting couple families in the UK. Cohabiting couples do not have the same rights as married couples upon separation and when a cohabiting relationship breaks down, there is little that the weaker party can do to protect themselves financially such as they have no right to claim any personal maintenance even if they have always been supported financially by their partner.

Furthermore, if the weaker party does not own the property in which they have lived with their partner, they will have no legal right to a share of the property even if they have contributed to the mortgage or paid towards the property in other ways such as decoration or building works. An attempt by the weaker party to claim a share of the property through the court system is dealt with by way of land and trust law which is complicated and very expensive to take through the court system, which often leaves the weaker party unable to take the matter further.

The Government does not appear to want to do anything about the rights of cohabitees any time soon even though it is clear that the law needs to catch up with modern living. It is therefore advisable for cohabiting couples to draw up a cohabitation agreement, otherwise known as a living together agreement setting out how they will divide up their assets upon separation and can include provision for any children. It can also set out how the couple will manage their finances whilst they are living together such as contributions to the mortgage, payment of bills, insurance and any home improvements which are to be carried out.

Both parties can agree on the terms of the agreement before seeing a solicitor who will then draw up the agreement and send it to the other party to seek their own legal advice and go through it. The agreement must be fairly entered into by both parties.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

Many grandparents play an important role in their grandchildren’s lives. It can often come as quite a shock that as a result of a relationship breakdown, they are prevented from spending time with their grandchildren. Many grandparents wish to ensure that they remain an active part of their grandchildren’s lives and many would have formed close bonds throughout their grandchildren’s lives.

Fortunately, the courts do recognise and will promote the role of a grandparent. They can therefore make their own application for a child arrangements order, which can set out when they are to spend time with their grandchildren and any other forms of communication such as telephone and skype contact. However, there are additional steps that need to be taken before making their application. They first need to seek permission from the court to make their application, and as usual, they will be required to attend a MIAM (Mediation Information Assessment Meeting) in order to see whether the relationship with the parents of the children can be restored.

The number of grandparents taking court action has increased, although making a court application should be a last resort. A carefully worded letter from a solicitor putting across why it is important for a grandparent to have contact with their grandchildren may be all that is needed. With an increasing number of grandparents taking on such care roles of children in every day family life, the numbers of clients of this kind are likely to increase.

It should be noted that any decision made by a court as to the arrangements for a child to see their grandparents will always be made based on what is in the child’s best interests.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

A young (opposite sex) couple committed to each other who wished to formalise their relationship were objected to the institution of marriage which they considered to be part of a ‘historically patriarchal nature,’ with sexist customs such as ‘giving the bride away,’ white dresses and hen and stag do’s. They therefore wished to enter into a civil partnership rather than a formal marriage. A civil partnership is described as a relationship between two people of the same sex when they register as civil partners of each other. S.1 (a) of the Civil Partnership Act 2004 states that two people are not eligible to register as civil partners if they are not of the same sex.

It was therefore their position that since the Marriage (Same Sex Couples) Act 2013 came into effect where it is now possible for same sex couples to marry, it had become incompatible with the European Convention on Human Rights which provides for the prohibition of discrimination.

It was held that the enactment of the Marriage (Same Sex Couples) Act 2013 had not rendered the Civil Partnership Act 2004 unlawful and had merely created a second route that same sex couples could go down in order to secure legal recognition of their relationship.

The couple launched a judicial review but lost their case. This case certainly highlights the issue of equality, not only for heterosexual couples wishing to enter civil partnerships but also for the equality of women in recognising long-term relationships.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

Latest figures released from the Office of National Statistics (ONS) for 2013 highlight that the number of divorces was in fact down by 2.9% on the previous year. Furthermore, the statistics show that the average age for divorce was 45 for men and 42 for women and that the average duration of marriage was 11.7 years although almost half of divorces happen in the first 10 years of marriage between the fourth and eighth year anniversary.

With the new year fast approaching, people who have been thinking about issuing a divorce are more likely to do so at the start of the year as they do not wish to be ‘in the same place’ mentally or physically for the next festive period and are therefore keen to kick start the process. Many people who decide to issue divorce proceedings in January are already committed to going through with the process and seek legal advice early on in the year. However it is becoming more common for people to seek advice at the stage when they are only considering a divorce in order to find out about what they may be facing should they or their spouse initiate the process in the future. Therefore being realistic and aware of any pitfalls will no doubt ease the process should a divorce become inevitable and may prevent any shocks and surprises which the process may reveal along the way.

Divorce is of course not something to look forward to but seeking advice early on is no doubt a sensible approach for anybody thinking about a divorce especially in the event that there are children to consider as well as a number of assets in the marriage.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.

A pre-nuptial agreement is an agreement that is intended to create legal contractual relations between both parties. It is intended to determine the division of assets in the event of the breakdown of the marriage, annulment, judicial separation or divorce but they are still not binding in English Law. The Supreme Court’s decision in the case of Radmacher v Granatino [2010] UKSC 42, [2010] 2 FLR 1900 confirms this position although it is clear that at the time, many newspapers were reporting the decision inaccurately giving the impression that they were now in fact legally binding.

The Law Commission has since made recommendations that urgent legislation is required which is likely to allow for ‘binding’ nuptial agreements in the next few years. Certain criteria must be met in order to give the agreement a binding effect to include that it should be contractually valid, must have been made within 28 days before the wedding or civil partnership, both parties should receive full disclosure of information regarding the other party’s financial position and both parties should have received legal advice at the time the legal agreement was drafted. That being said, any pre-nuptial agreements that are currently being drafted, as long as they take into account the criteria, the Court would certainly attach significant weight to the document in any court proceedings.

The Family Law System in England and Wales is a discretionary system and it is usually the party that is financially stronger who wishes to protect their assets from this discretion and therefore wishes to enter into such an agreement.

If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at louisa.gothard@bloomsbury-law.com.